Employees Face 'Really Tough Choice' as States Say Return to Work or Lose Unemployment Benefits

Americans worried about contracting the coronavirus at work are facing the tough choice of having to decide whether to return to their jobs or risk losing their unemployment benefits as states start to reopen.

Texas Gov. Greg Abbot has given the go ahead for movie theaters, retail stores and malls to reopen on Friday. But the Texas Workforce Commission (TWC) has said that to be eligible for unemployment benefits, workers must be "willing and able to work all the days and hours required for the type of work you are seeking," The Texas Tribune reported.

A server at a restaurant in Odessa, Texas, told the paper she was afraid of returning to work because she thought she was being put at risk.

In Iowa, Gov. Kim Reynolds announced that social distancing in 77 out of 99 counties would be loosened due to a decline in new cases or no new cases at all for the past two weeks, one of the requirements for states to reopen.

Unemployment application
Unemployment forms are seen kept at a drive thru collection point outside John F. Kennedy Library in Hialeah, Florida, on April 8, 2020. States that are reopening have said that workers who do not return to work would see their unemployment payments cease. CHANDAN KHANNA/Getty Images

She said that employers with workers refusing to return should file a report with Iowa Workforce Development. "If you're an employer and you offer to bring your employee back to work and they decide not to, that's a voluntary quit. Therefore, they would not be eligible for the unemployment money," she said, according to The Hill.

While the TWC has since said it "may need to review" situations "on a case by case basis," the opening up of states, some of which have not met government guidelines for a decrease in COVID-19 cases, has raised questions over how and when workers should return to work.

More than 26 million people have applied for unemployment benefits since mid-March, according to the U.S. Department of Labor. Weekly payments vary by state and are topped up by $600 in federal funds following the passing of the Coronavirus Aid Relief and Economic Security Act (CARES).

However those who do not return to work can only continue to get unemployment benefits if they are ill with COVID-19 or taking care of a family member who is infected.

"The vast majority of workers are going to have to face a really tough choice," Jeffrey Hirsch, professor at the University of North Carolina's school of law told Newsweek.

"For most workers dealing with this issue, such as blue workers who are being ordered to return to work, who have a fear of safety, they probably aren't protected. The employer probably can order them to do that and a state could lawfully say, 'if you refuse, you are not going to get unemployment benefits'.

"Even if they have a decent legal claim, they probably don't have the resources or the time to challenge it. They are stuck."

"They really are having to have to make a choice between whatever risk they feel going to work, versus losing their job, in an awful job market," Hirsch said.

Unemployment forms
A man collects unemployment forms at a drive thru collection point in Hialeah, Florida. Some states that are reopening have warned employees that they'll lose unemployment benefits if they refuse to go back to work. CHANDAN KHANNA/Getty Images

Employment law attorney in Decatur, Georgia, James Radford, is representing workers who have declined to return due to COVID-19 fears in his state which has been early to reopen.

He said that where an employee has to stay off work due to their health condition or that of a family member, or because their children are out of school, "They may be entitled to leave pay under the recent federal law, even if they are not entitled to unemployment compensation."

"We don't yet know what approach the Department of Labor is going to take," he told Newsweek.

He said that there will be cases where an "uncaring employer" will report a worker worried about the threat of COVID-19 to the Department of Labor but even with the promise of federal money, "I predict the state is going to try and remove people from the unemployment rolls however they can."

Radford said that the reopening orders do not require a business to bring back all its staff.

"Hopefully what will happen is that the employers will communicate with their employees to find out who is ready and able to return, and offer positions to those."

The Occupational Safety and Health Act (OHSA) states that employers are responsible for providing safe workplaces for their employees and advises employers to ensure that "working conditions that do not pose a risk of serious harm."

It also states employers may consider providing sick leave so that workers can stay home if they are sick and that "flexible leave policies help stop the spread of disease, including to healthy workers."

Keith Hall, professor of the practice at the McCourt School of Public Policy at Georgetown University in Washington, D.C. said the prospect of employees having to return to workplaces they felt were not safe was a "potentially a terrible situation."

He said that the part of the CARES Act that widens eligibility, Pandemic Unemployment Assistance (PUA) "does provide benefits for someone that has to quit a job as a direct result of COVID-19.

"This might be interpreted to include someone not willing to return to work because of COVID. In reality, a more political solution seems possible," he told Newsweek.

The infographic below, provided by Statista, shows the states with the most number of COVID-19 cases throughout the U.S. as of April 29.

coronavirus U.S. states
U.S. states with most COVID-19 cases. Statista